Three Ring Government

Well, I must say that whenever I have had involvement with government on the state or federal level, I have thought that a circus was surely running things!

The French author and philosopher Montesquieu, leaning heavily on Aristotle and the Greek historian of the Roman Republic Polybius, in his The Spirit of The Laws (1748) helped popularize the notion of a mixed government: executive, legislative and judicial, providing a safeguard to liberty.  As our history has shown, it is hard for the components to stay in balance.

For most of our history Congress was the predominant power.  In the 20th Century the Executive grew immense and Congress was often reduced to being a junior partner to powerful Presidents.  Since World War II, the Judiciary, through the Supreme Court, has often wielded ultimate power in regard to government in quite a few areas.  I doubt if most of the Founding Fathers would be pleased by the waning of the power of Congress, especially in regard to the Judiciary which they designed to be the weakest branch.  However, with their realistic view that men were not angels and would seize power when they can, I doubt if any of them would be surprised.

4 Responses to Three Ring Government

  • Donald,

    I am not sure. I tend to think that what has gained in power is wherever “progressive statists” happen to reside at the moment. Pres. Bush was, in many regards, a progressive statist in terms of executive power – we see Pres. Obama reaping the rewards of that now in his selective enforcement of laws, abuse of power, etc.

    And you mention that Congress was supreme “for most of history,” but I tend to see the rise of the powerful executive and court after 1900, give or take, which means that from 1776 – 1900, a powerful Congress (124 years), from 1900 – 2012, executive or courts, (112 years). Percentage wise, far greater. Years-ly, about equal.

    Have you read, b.t.w., “The Least Dangerous Branch”, by Alexander Bickel?

  • I read it years ago Jonathan. I am afraid it left little impression on me. In regard to Congress, I would argue that in the 20th there were periods of Congressional supremacy up to World War II, most notably in the 20s, but your point is well taken.

    I think what has fostered the growth in Executive Power and Judicial power is to a large extent legislative abdication. Too many Congresscritters assume that the path to political survival is to let the President or the Courts act, and we have Congress engaged in ceding power. A prime example was Obamacare which basically put Executive agencies in charge of the nation’s healthcare. In regard to the courts we have Congess passing legislation of dubious constitutionality assuming that the courts will take care of any problems. Both of these trends would have horrified the Founding Fathers.

  • Absolutely correct, Don. Congress is by design the most powerful branch, primarily because it holds the power of the purse. But it can also limit the jurisdiction of the Supreme Court to hear cases, and theoretically all but eliminate the lower federal courts. Of course, it can also impeach the president.

    The framers wisely put the greatest power into the hands of the branch most closely answerable to the people, especially the House, with two year elections. When senators were chosen by the state legislatures, there was another strong check on federal power, and also again, keeping the power close to the citizenry.

    Congress clearly holds the cards, but as you point out they simply have been reticent to use it. Sadly, it is a truly bipartisan abdication… and has really caused chaos as the courts spin out of control, and the executive has its fingers in all kinds of properly legislative pies.

  • Donald,

    I agree with you on the Congressional abdication. I saw a debate one time between Doug Kmiec and Louis Fisher, where Fisher was basically arguing that Congress had given up power to the executive and the administrative branch. I think he’s basically right.

    For myself, I would think that, as of the past 20 years, we are in the era of the quasi-fog. The administrative branches of government (EPA, FDA, IRS, etc.) which have quasi-legislative (CFRs, interpretations of their own, etc.), quasi-judicial (often responsible for preliminary interpretation adjudication) and quasi-executive (may levy fines, etc) powers have more responsibility and power for the way things happen than any one constitutional branch of government. The only way to get an IRS ruling overturned is through a court action, and then the court will always give extreme deference to the IRS interpretation.

    The reason I asked about “The Least Dangerous Branch” was for Bickel’s formulation of the counter-majoritarian issue, namely, to quote Larry Solum:

    “The counter-majoritarian difficulty states a problem with the legitimacy of the institution of judicial review: when unelected judges use the power of judicial review to nullify the actions of elected executives or legislators, they act contrary to “majority will” as expressed by representative institutions. If one believes that democratic majoritarianism is a very great political value, then this feature of judicial review is problematic. For at least two or three decades after Bickel’s naming of this problem, it dominated constitutional theory.”

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